Mental Health Treatment • Sampson Collaborative Law

Parenting Plans – Consent to Child’s Mental Health Treatment

Collaborative Divorce, Mental Health Treatment, Parenting Issues / Michael P Sampson

How do parenting plans provide for consent to mental health treatment for a child? What does “mental health treatment” even mean and include? Further, what if parents don’t agree on mental health treatment their child should continue, undertake, or stop? In this context, how does shared parental responsibility and decision making work? Specifically, may one parent consent to mental health treatment for the child when the other doesn’t agree? Must they even confer before one parent authorizes mental health treatment for their child? Shared Parenting and Decision Making – Mental Health Treatment First, we discuss basics of shared and sole parental responsibility and decision making. Then, we examine Florida’s amended law mandating each parent’s retaining consent to mental health treatment when they share parental responsibility. What does “mental health treatment” mean? How can parents use various definitions in their collaborative process? Finally, we survey Florida’s laws on informed consent by one parent or guardian. In this series, we discuss: Shared Parental Responsibility and Sole Parental Responsibility Shared Parenting – Retained Consent to Mental Health Treatment Florida Law: Each Parent Retains Consent to Mental Health Treatment Collaborative Practice: Shared Parental Responsibility for Health Care Collaborative Process: Clarifying Intent About “Mental Health Treatment” What Is “Mental Health Treatment?” Language – “Mental Health Treatment” Informed Consent By One Parent – Florida Mental Health Professionals Florida Mental Health Providers & Informed Consent What If Parents Disagree About Child’s Mental Health Treatment? ⇒ Next: Parental Responsibility and Decision Making

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Parental Responsibility & Decision Making

Collaborative Divorce, Mental Health Treatment, Parenting Issues, Timesharing & Custody / Michael P Sampson

Parents in Florida divorce and paternity cases decide if they will share parental responsibility and decision making for their child. Therefore, they must agree to a “Parenting Plan” or have a judge decide on a plan. In collaborative practice, parents work with a collaborative neutral facilitator and collaborative professional team. How does that work? The collaborative team helps parents write their parenting agreements. Typically, the agreements includes the regular and holiday schedule and how the parents will share important decisions. Florida law calls this decision-making authority “parental responsibility.” The Supreme Court of Florida approved form parenting plans, including Form 12.995(a) – Parenting Plan (02/18) and Form 12.995(c) – Relocation/Long Distance Parenting Plan (02/18) give parents the option of agreeing on: Parents commonly agree to, and courts order, “shared parental responsibility” over decisions. Moreover, Florida’s public policy favors shared parental responsibility. See Coyne v. Coyne, 895 So. 2d 469 (Fla. 2d DCA 2005) and Section 61.13(2)(c)(1), Florida Statutes. However, unusual circumstances might justify one parent’s having sole decision-making authority. For example, that may be best when sharing decisions would hurt their child. For more information about collaborative divorce and shared parental decisionmaking, contact Michael P. Sampson at Sampson Collaborative Law. Related Blog Posts

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mother with two children - shared parental responsibility or sole parental responsibility

Shared Parental Responsibility and Sole Parental Responsibility

Collaborative Divorce, Mental Health Treatment, Parenting Issues, Timesharing & Custody / Michael P Sampson

Parents who “share parental responsibility” retain full parental rights and responsibilities for their child. This means both parents confer with each other to make decisions for their child. See Section 61.046(17), Florida Statutes. In sharing responsibility for decisions, parents generally must communicate with each other. They must try to agree about important decisions. Most parents would do that while together. But when they don’t or can’t agree, options for resolving disagreements include collaborative law practice, mediation, litigation, and other means. Shared Parenting Unless Detrimental The court must order shared parental responsibility unless the court finds it would be detrimental to the child. See Section 61.13(2)(c), Florida Statutes. If the court determines shared parental responsibility would be detrimental, it may order sole parental responsibility. Under “sole parental responsibility,” one parent decides for the child. – Section 61.046(18), Florida Statutes. Regarding shared parental responsibility or sole parental responsibility, courts may consider the parents’ desires and grant to one parent ultimate responsibility over specific aspects of the child’s welfare. Alternatively, the court may divide those responsibilities between the parents based on the child’s best interests. Such areas of parental responsibility may include education, health care, and “any other responsibilities that the court finds unique to a particular family.” See Section 61.13(2)(c)2.a., Florida Statutes. A subset of “health care” is mental health treatment for a child. Courts must safeguard a child’s best interest. So judges can’t order blanket ultimate decision-making authority over “all” issues if parents sharing parental responsibility disagree. See McClure v. Beck, 212 So. 3d 396 (Fla. 4th DCA 2017); Seligsohn v. Seligsohn, 259 So. 3d 874 (Fla. 4th DCA 2018); De La Fe v. De La Fe, 332 So. 3d 60 (Fla. 2d DCA 2021). Instead, to direct ultimate decision-making authority, courts must specify concrete aspects over which a parent will have ultimate decision-making. See also Clarke v. Stofft, 263 So. 3d 84 (Fla. 4th DCA 2019). General Award of Ultimate Say-So Improper Nothing stops a judge from giving a parent final say-so over specific areas if evidence justifies “ultimate responsibility.” See Moses v. Moses, 347 So. 3d 385 (Fla. 5th DCA 2021). But in Moses, the judge went too far awarding mom ultimate decision-making authority over 18 separate areas. Those areas included education, healthcare, and moral and religious decisions. Dad was an active-duty service member forced to retire because of mental and physical ailments. He received an honorable discharge from the military. The Veterans Administration rated him totally disabled. He had a history of alcohol problems. Yet a social investigator and psychological evaluator found no significant concerns about his safely parenting the children. Evidence showed mom uncooperative and uncommunicative with dad about the kids. Absent evidence justifying the trial judge’s broad grant to mom of ultimate say-so, the appellate court reversed and sent the case back to the judge. But how do these principles apply to decisions about a child’s mental health treatment? In the next section, read more about shared parenting and retained consent to mental health treatment. Related Blog Posts

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teenager with hands on head sitting on bathroom floor drugs on counter. Shared parenting retained consent mental health treatment

Shared Parenting – Retained Consent to Mental Health Treatment

Collaborative Divorce, Mental Health Treatment, Parenting Issues / Michael P Sampson

Florida law treats consent to a child’s “mental health treatment” differently from other shared major parental decisions. In 2016, Florida law changed to mandate certain provisions in parenting plans. See Laws of Florida 2016-241. Most parenting plans say parents will share parental responsibility. For such plans, section 61.13(2)(b)3., Florida Statutes, requires providing that either parent retains consent to mental health treatment for their child. Moreover, omitting from a parenting plan or final judgment that either parent alone may provide such consent is legal error. For example, see E.V. v. D.M.V.H., 273 So. 3d 1132 (Fla. 2d DCA 2019) (parenting plan sufficiently provided either parent may consent to treatment for child). Compare that case with Lennon v. Lennon, 264 So. 3d 1084 (Fla. 2d DCA 2019). In Lennon, the court sent the case back to the trial court to include the missing “retained consent” provision in a final judgment. Failure to Provide for Unilateral Consent to Mental Health Treatment is Reversible: Pukin v. Pukin. Most recently, the Sixth District Court of Appeal followed Lennon. In Pukin v. Pukin, 365 So. 3d 493 (Fla. 6th DCA 2023), the court sent the case back to the trial judge to fix a Parenting Plan. The Parenting Plan failed to provide either parent may consent to mental health treatment for the children. Amended 61.13(2)(b)3.a Lets a Judge Provide for Joint Consent to Mental Health Treatment. An amendment to section 61.13(2)(b)3.a., Florida Statutes, effective July 1, 2023, provides, as a minimum requirement for a parenting plan approved by the court: If the court orders shared parental responsibility over health care decisions, either parent may consent to mental health treatment for the child unless stated otherwise in the parenting plan. See Laws of Florida Ch. 2023-213; CS for CS for SB 226 and Bill Analysis of the Committee on Rules. This means a judge may specify in a parenting plan that each parent does not retain consent to the child’s mental health treatment. For example, even when a judge orders shared parental responsibility over health care decisions, a judge may find it’s not in the child’s best interest for a parent to have that right. What Happens When Parents Disagree About Consent to Mental Health Treatment? Think about how consent to mental health treatment plays out in practice. A modification case illustrates how parents may litigate when both disagree about consent to therapy. In Puhl v. Puhl, 260 So. 3d 323 (Fla. 4th DCA 2018), parents agreed on a parenting plan that gave the mom ultimate decision making when the dad and she couldn’t agree. Dad alleged mom took the child to therapy the child didn’t need without first consulting him. But, before entry of final judgment, a medical professional diagnosed the child with the condition for which mom sought treatment. The Court held mom’s taking the child to therapy without first consulting dad didn’t support modifying the parenting plan. The facts supported no finding of a “substantial, material, and unanticipated change in circumstances” occurred. Extraordinary Burden for Modifying Parenting Plans This “substantial change” burden for modification for modifying parenting plans is difficult to carry. But, in Florida collaborative divorce, parents have options. They may agree to a different burden for modification. Read more about provisions for resolving impasses when parents disagree here. Related Blog Posts Introduction Florida Parenting Plans Consent to Child’s Mental Health Treatment Shared Parental Responsibility and Sole Parental Responsibility Florida Law: Each Parent Retains Consent to Mental Health Treatment Collaborative Practice: Shared Parental Responsibility for Health Care Collaborative Process: Clarifying Intent About “Mental Health Treatment” What Is “Mental Health Treatment?” Language – “Mental Health Treatment” Informed Consent By One Parent – Florida Mental Health Professionals Florida Mental Health Providers & Informed Consent What If Parents Disagree About Child’s Mental Health Treatment?

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Florida Law: Each Parent Retains Consent to Mental Health Treatment

Collaborative Divorce, Mental Health Treatment, Parenting Issues / Michael P Sampson

In 2016, Florida law changed to mandate, in parenting plans designating shared parental responsibility, that either parent retains consent to their child’s mental health treatment. See Section 61.13(2)(b)3., Florida Statutes, amended by Laws of Florida 2016-241. Analysis of the final version is available here. A parenting plan that doesn’t provide for either parent to consent to the child’s mental health treatment is legally deficient. See Hernandez v. Mendoza, 346 So. 3d 60 (Fla. 4th DCA 2022) (parenting plan that provided for shared parental responsibility over health care decisions failed to provide that either parent could consent to mental health treatment for the children). See also Scudder v. Scudder, 296 So. 3d 426 (Fla. 4th DCA 2020). 2023 Amendment to Section 61.13 (Effective July 1, 2023) Unless a parenting plan states otherwise, either parent may consent to mental health treatment for a child. An amendment to section 61.13(2)(b)3.a., Florida Statutes effective July 1, 2023, provides as a minimum requirement for a parenting plan approved by the court: If the court orders shared parental responsibility over health care decisions, either parent may consent to mental health treatment for the child unless state otherwise in the parenting plan. See CS for CS for SB 226 and Bill Analysis of the Committee on Rules. See Laws of Florida, Ch. 2023-213. In practice, however, each parent’s reserved right to consent to a child’s mental health treatment, with no prior obligation to confer with the other parent, invites confusion, presents challenges, and leads to disputes. To forestall costly and rancorous modification or enforcement actions, parents, courts, and collaborative practitioners may explore workable solutions. History of Retained Consent to Mental Health Treatment in Florida How did this change in Florida parenting plan law come about? The Florida Legislature intended the amended language would help parents sharing responsibility for decision making after divorce or separation. Mental health professionals identified challenges in providing mental health treatment or counseling to children after divorce or separation. The Florida House Civil Justice Subcommittee drew guidance from a University of North Carolina, School of Social Work study. See Souders, T., Strom-Gottfried, K., & DeVito, D., Theimann Advisory: FAQ on Services to Minors of Divorced Parents, available here. North Carolina Mental Health Provider Study The 2009 North Carolina study asked mental health providers: Parents Exploiting Consent to Child’s Mental Health Treatment in Family Disputes The Florida House Civil Justice Subcommittee described parents using consent to a child’s mental health treatment as leverage: Obtaining the consent of both parents often involves navigating emotionally-charged and history-laden territory. This can create a tug-of-war between divorced or separated parents who are, in effect, using their child as leverage in their interpersonal dispute. This seems to arise most often when children need in-patient or full-day treatment for psychiatric issues related to depression, often caused by the family discord. Quoting Ann Bittinger, Legal Hurdles to Leap to Get Medical Treatment for Children, THE FLORIDA BAR JOURNAL (January 2006), p. 24, available here. Florida Circuit Judge R. Thomas Corbin lamented about shared parenting and decisions about a child’s mental health: In cases in which a settlement agreement or a judgment said the parents will “share parenting”, family judges are frequently asked in post judgment motions to decide if a child should take medication for ADHD, depression, a bipolar condition, etc.,… because the parents cannot “confer with each other” and “share” these parenting decisions and neither one has any authority to make the decision alone because the order in their case requires them to “share parenting decisions.” However, there is no authority that a judge in a Chapter 61 case has the power to make such parenting decisions. A Chapter 61 judge has no authority to become a “super parent.” See The Honorable R. Thomas Corbin, A Parenting Plan Must Include a Parental Responsibility Order and a Time-Sharing Schedule, The Florida Bar Family Law Section: Commentator (Fall 2010), p. 18, available here. On each parent’s retained consent to mental health treatment, the Florida Senate Committee on Rules, discussing companion Senate Bill S/CS/SB 794, said: “The scope of what is meant by mental health treatment, however, is not defined.” See Analysis found here. The Opportunity to Avoid Future Disputes About Child’s Mental Health Treatment In shared parenting, each parent retains consent to the child’s mental health treatment. That can lead to problems when the parents disagree, however. As parents and collaborative practitioners work through the issue, rather than leave to future judicial or legislative interpretation, they may benefit by precisely stating in the parenting plan what they mean by “mental health treatment.” Stating Intent Precisely: Child-Counselor Communications: Bentrim v. Bentrim Precision in drafting agreements regarding a child’s mental health treatment is beneficial. A related issue is ambiguity about access a parent has to records of the child’s mental health treatment. For example, consider the March 2022 Bentrim case. For 11 years after they divorced, the Bentrim parents fought in court. The court ordered them to agree on a counselor for their daughter. The order directed that all communications between the child and her therapist would remain confidential, “as section 90.503, Florida Statutes provides.” Mom gave dad three potential counselors to consider. He told her he preferred a social worker the child had been seeing. Yet she took the child to another counselor, a psychologist, without dad’s prior knowledge or consent. Dad found out and was unhappy. The social worker testified mom emailed her and said she didn’t want the daughter to keep seeing her, and asked for notes of the counseling sessions. The counselor, who knew nothing of the court order about confidentiality, sent her session notes to both parents. At dad’s request, the court held mom in contempt for requesting and getting the child’s confidential records. But the appeals court reversed, because the order didn’t explicitly bar either mom’s or dad’s ability to request their child’s counseling notes. The Fourth DCA discussed each parent’s rights to request records and interplay with the child’s psychotherapist-patient privilege, which each parent may assert. Section 90.503, Florida Statutes. Because the trial judge

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Doctor showing laptop information. Parental Responsibility Health Care

Collaborative Practice: Shared Parental Responsibility for Health Care

Collaborative Divorce, Mental Health Treatment, Parenting Issues / Michael P Sampson

How do courts in Florida handle shared parental responsibility over a child’s health care? Florida family judges must determine parenting matters according to the child’s best interests and the Uniform Child Custody Jurisdiction and Enforcement Act. Exception to Best Interests: Modification of Parenting Plan There is an exception. Modification of a parenting plan and time-sharing schedule requires showing a substantial, material, and unanticipated change of circumstances. See Section 61.13(2)(c), Florida Statutes. Courts have described this burden of proof as “extraordinary.” The extraordinary burden for modification became less so. On June 27, 2023, the Florida Governor signed an amendment to Florida’s timesharing and Parenting Plan law. Effective July 1, 2023, Florida law on modification cuts the requirement a substantial change in circumstances for modification be unanticipated. See CS/HB 1301, amending section 61.13(3), Florida Statutes. Laws of Florida, Ch. 2023-301. Parenting Plans and Responsibility for Health Care Florida parenting plans must designate who will be responsible for “any and all forms of health care.” Section 61.13(2)(b)3., Florida Statutes states: “If the court orders shared parental responsibility over health care decisions, the parenting plan must provide that either parent may consent to mental health treatment for the child unless stated otherwise in the parenting plan.” Section 61.13(2)(b)3.a., amended by Ch. 2023-213, Laws of Florida (effective July 1, 2023) (underlined phrased added) But, what if the court doesn’t order shared parental responsibility over health care decisions for a child? Then, the required provision that either parent may alone consent to the child’s mental health treatment doesn’t apply. For Sole Parental Responsibility…Showing Shared Parental Responsibility Would Be Detrimental Parents may ask the court to find shared parental responsibility would be detrimental to their child. Further, they may ask the court to award one parent sole responsibility over mental health treatment decisions. It’s rare they’d jointly concede sharing decision making would hurt their child. But what if the parents don’t want to agree shared parental responsibility would be detrimental? Suppose they’d just like to make things clear…and easier? Parents in the collaborative don’t have to impinge on each parent’s retained right to consent to mental health treatment. Instead, parents may explore options to specify parameters and protocols for their child’s mental health treatment. Opportunity in Collaborative Divorce to Address Mental Health Treatment So, how may collaborating parents share parental responsibility, but clarify their intent about mental health treatment for their child? ⇒ Next: Collaborative Process: Clarifying Parents’ Intent About “Mental Health Treatment” ⇐ Previous: Amended Florida Parenting Plan Law Mandates Each Parent’s Retaining Consent to Mental Health Treatment Related Blog Posts

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Depressed teenager with head in hands. Florida Collaborative Practice: Clarifying Parents’ Intent About “Mental Health Treatment”

Collaborative Process: Clarifying Intent About “Mental Health Treatment”

Collaborative Divorce, Mental Health Treatment, Parenting Issues / Michael P Sampson

Florida’s divorce and paternity statutes don’t define “mental health treatment.” When they’re sharing parental responsibility, each parent retains parental consent to mental health treatment. However, by clarifying and agreeing to the scope of “mental health treatment” for their child, parents may avoid confusion and future litigation. Parents in collaborative practice may define by agreement “mental health treatment” and a protocol for decision making about mental health treatment. They may show the judge their agreement is in their child’s best interests. Judges Should Respect Parents’ Agreements Clarifying Intent About “Mental Health Treatment” Judges have an independent duty to safeguard a child’s best interests, even when parents agree on how they’ll raise their child. Although the parents’ agreement is not binding on the judge, See Feliciano v. Feliciano, 674 So.2d 937 (Fla. 4th DCA 1996), Florida case precedent holds the judge has no free hand to disregard their wishes. Sedell v. Sedell, 100 So.2d 639, 642 (Fla. 1st DCA 1958). Florida law favors settlement agreements. By collaborative contracts, parents can agree on creative solutions even a judge might be unable to order if they didn’t agree. Therefore, a court should respect and uphold such agreements unless a valid reason related to the best interest of the child or a finding that parents’ agreements were involuntary or the product of fraud justifies not respecting and upholding the parents’ agreements. For example, in Griffith v.Griffith, 860 So. 2d 1069 (Fla. 1st DCA 2003), there wasn’t enough evidence to support the trial judge’s disdaining parents’ mediation agreement. Their agreement resolved alimony, child support, and custody. Yet the court conducted post-mediation hearings to determine if the agreement was in the children’s best interest. Then, the judge concluded the agreement wasn’t in the children’s best interest. So the trial court cut the doctor-mom’s agreed-on child support obligation. And, in Williams v. Sapp, 255 So. 3d 912 (Fla. 1st DCA 2018), a trial judge improperly modified parents’ mediation agreement for mom to have sole parental responsibility. But there was no notice or opportunity for mom to be heard. The appeals court held the trial judge must either approve the parents’ agreement as they negotiated it or, if the court is can’t or won’t, must conduct a properly-noticed evidentiary hearing. Read more about how the Florida collaborative process lets divorcing parents harness their power to contract and reach creative solutions. For more information about the collaborative process, contact Sampson Collaborative Law. Related Blog Posts Parental Responsibility & Decision Making Shared Parenting – Retained Consent to Mental Health Treatment Florida Law: Each Parent Retains Consent to Mental Health Treatment Collaborative Practice: Shared Parental Responsibility for Health Care What Is “Mental Health Treatment?” Language – “Mental Health Treatment” Informed Consent By One Parent – Florida Mental Health Professionals Florida Mental Health Providers & Informed Consent What If Parents Disagree About Child’s Mental Health Treatment?

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What Is “Mental Health Treatment”?

Collaborative Divorce, Mental Health Treatment, Parenting Issues / Michael P Sampson

Florida law provides either parent may consent to their child’s mental health treatment. But, what is “mental health treatment? Are there definitions of “mental health treatment” that may guide divorcing parents? The answer is there are definitions of “mental health treatment.” Such definitions may guide parents and their Florida collaborative practice team. That way, parents in collaborative divorce may attempt to clarify their intent about “mental health treatment” for their child. Florida Juvenile Justice System – Techniques That Constitute “Mental Health Treatment” of Children First, parents and their Collaborative Divorce team may consider prevention, early intervention, control, and rehabilitative treatment of delinquent behavior. The Florida Juvenile Justice System may provide guidance. Regulations, which implement the Florida Juvenile Justice System under Chapter 985, Florida Statutes, include Florida Administrative Code, Rule 63N-1.0081. This regulation lists techniques that constitute “mental health treatment” of children. Such treatment includes: Individual Therapy or Counseling (a) Individual therapy or counseling, which is one-to-one counseling between a youth with a diagnosed Mental Disorder and a Licensed Mental Health Professional or a Mental Health Clinical Staff Person working under the direct supervision of a Licensed Mental Health Professional. Individual counseling or therapy shall be a planned and structured face-to-face therapy session designed to address the youth’s symptoms and accomplish the goals and objectives in the youth’s Initial or Individualized Mental Health Treatment Plan. Individual counseling or therapy shall be based on evidence-based therapy models such as cognitive behavioral therapy, reality therapy, gestalt therapy or rational emotive therapy, or identified as promising practices in published quantitative research showing positive outcomes and demonstrated effectiveness in mental health treatment. Group Therapy or Counseling (b) Group therapy or counseling, which is an assembly of youths who have a diagnosed Mental Disorder and a Licensed Mental Health Professional or a Mental Health Clinical Staff Person working under the direct supervision of a Licensed Mental Health Professional for the purpose of using the emotional interactions of members of the group to help them get relief from distressing symptoms and to modify their behavior. 1. Group therapy/counseling shall be a planned and structured face-to-face therapy session designed to address the youths’ symptoms and accomplish the goals and objectives in the youths’ Initial or Individualized Mental Health Treatment Plans. 2. Group therapy/counseling shall be based on evidence-based treatment models such as cognitive behavioral therapy, reality therapy, gestalt therapy or rational emotive therapy and evidence-based curricula or curricula identified as promising practices in published quantitative research showing positive outcomes and demonstrated to be effective in mental health treatment. 3. Group therapy/counseling provided in DJJ residential commitment programs designated for Specialized Treatment Services shall not exceed a group size of 10 youths with mental health diagnoses. Family Counseling or Therapy (c) Family counseling or therapy, which is an assembly of a youth with acute or chronic Mental Disorder, his/her family members such as the youth’s parents or guardians and siblings, and a Licensed Mental Health Professional or a Mental Health Clinical Staff Person working under the direct supervision of a Licensed Mental Health Professional for the purpose of improving the youth’s and family’s functioning in areas which appear to impact his/her Mental Disorder. Family counseling or therapy must be based on effective treatment approaches such as family systems therapy, functional family therapy and multi-systemic therapy or identified as promising practices in published quantitative research showing positive outcomes and demonstrated to be effective in family counseling. Behavior Therapy (d) Behavior therapy, which is a mode of treatment provided by a Licensed Mental Health Professional or a Mental Health Clinical Staff Person working under the direct supervision of a Licensed Mental Health Professional, for the purpose of modifying the behavior of a youth with a diagnosed Mental Disorder by assisting him/her in learning new, more acceptable and adaptable forms of behavior. 1. Behavior therapy shall be designed to address the effects of the youth’s symptoms on his/her behavior and accomplish the goals and objectives in the youth’s Individualized Mental Health Treatment Plan. 2. Behavior Analysis Services must be provided by a Licensed Mental Health Professional, Board Certified Behavior Analyst or Certified Behavior Analyst. Psychosocial Skills Training (e) Psychosocial Skills Training, which is a face-to-face therapeutic activity designed to address specific skill deficits or maladaptive behaviors and promote skill development and improved functioning of youths with Mental Disorder. Psychosocial Skills Training must be provided by a Licensed Mental Health Professional or a Mental Health Clinical Staff Person working under the direct supervision of a Licensed Mental Health Professional. Psychosocial Skills Training must address the specific deficits or maladaptive behaviors identified in the youth’s Initial of Individualized Mental Health Treatment Plan. Juvenile sexual offender therapy and juvenile sexual offender treatment (f) Juvenile sexual offender therapy and juvenile sexual offender treatment shall be conducted, managed or supervised in accordance with Sections 490.012(8) or 491.012(1)(n), Florida Statutes. Requirements for “mental health treatment services” include: Definition of “Mental Illness” under the Florida Mental Health Act (Baker Act) Second, when considering definitions of mental health treatment, parents and their collaborative team may look to the Florida Mental Health Act (The Baker Act). The Baker Act covers involuntary mental health examination and placement for persons with mental illness. See section 394.455(29), Florida Statutes. The Act defines “mental illness”: “Mental illness” means an impairment of the mental or emotional processes that exercise conscious control of one’s actions or of the ability to perceive or understand reality, which impairment substantially interferes with the person’s ability to meet the ordinary demands of living. For the purposes of this part, the term does not include a developmental disability as defined in chapter 393, intoxication, or conditions manifested only by antisocial behavior or substance abuse. Definition of “Mental Health Services” under the Florida Community Substance Abuse and Mental Health Services Act Third, Florida’s Community Substance Abuse and Mental Health Services Act may guide parents thinking about definitions of mental health treatment. Section 394.67(16), Florida Statutes defines “Mental health services”: Mental Health Services “Mental health services” means those therapeutic interventions and activities that

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Language – “Mental Health Treatment”

Collaborative Divorce, Mental Health Treatment, Parenting Issues / Michael P Sampson

Parents in the Collaborative Process may consider using definitions of “mental health treatment.” This article give example language using definitions. For more about definitions, read the discussion here. Example Language- Mental Health Treatment For our Parenting Plan, “Mental Health Treatment” means these techniques, as defined in Florida Administrative Code, Rule 63N-1.0081: (a) Individual therapy or counseling; (b) Group therapy or counseling; (c) Family counseling or therapy; (d) Behavior therapy; (e) Psychosocial Skills Training; or (f) Juvenile sexual offender therapy and juvenile sexual offender treatment We agree the Mental Health Treatment, as defined above, must: be provided by a Licensed Mental Health Professional or a Mental Health Clinical Staff Person working under the direct supervision of a Licensed Mental Health Professional. be based on our child’s symptoms and DSM diagnosis (Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association) identified by a Comprehensive Assessment, a Comprehensive Mental Health Evaluation, or updated Comprehensive Mental Health Evaluation. seek to reduce our child’s symptoms of Mental Disorder (See Fla. Admin. Code R. 63N-1.002(50)) and the negative effects of symptoms on the child’s behavior and accomplish the measurable goals and objectives specified in the child’s Initial or Individualized Mental Health Treatment Plan. Example Language Regarding Existing Mental Health Treatment Our child’s existing Mental Health Treatment, as defined above, are [insert current services]. We understand each of us retains the right to consent to continued Mental Health Treatment for our child. We agree our child’s existing Mental Health Treatment will continue until, after conferring (1) we agree in writing it is no longer necessary or beneficial to our child; (2) the mental health provider concludes or terminates the Mental Health Treatment; or (3) a court orders otherwise. If we disagree on the necessity or benefit to our child of continued Mental Health Treatment, the Mental Health Treatment will continue, but we will attempt in good faith to resolve the disagreement through return to the collaborative practice or alternative dispute resolution options provided in this Parenting Plan, our Collaborative Marital Settlement Agreement, or both. Example Language Regarding Additional or New Treatment or Services Before taking our child for additional or new Mental Health Treatment, as defined above, we will confer and attempt to agree to (i) the Mental Health Treatment that will best benefit our child; (ii) the provider of such Mental Health Treatment; (iii) the anticipated duration of the Mental Health Treatment or services; and (iv) the proposed cost of the Mental Health Treatment covered by insurance and not covered by insurance. We understand each of us retains the right to consent to additional or new Mental Health Treatment for our child. Example Language – Notice of Additional or New Mental Health Treatment We agree to attempt to confer before taking our child for additional or new Mental Health Treatment. But if one of us does take our child for and consents to such Mental Health Treatment before we confer, the parent taking the child shall notify the other parent within 24 hours of taking the child for additional or new Mental Health Treatment. If one of us takes our child for treatment, services, or technique not enumerated in the above definition of “Mental Health Treatment,” the parent taking the child for such treatment, services, or technique shall notify the other parent within 24 hours of taking the child for the treatment, services, or technique. If we have not agreed in advance to additional or new Mental Health Treatment for our child or treatment, services, or techniques not included in the above definition of Mental Health Treatment within __ days of receiving notice of additional or new Mental Health Treatment, or of treatment, services, or technique not included in the above definition of Mental Health Treatment, the parent receiving the notice may communicate his or her agreement or, if he or she disagrees, may request return to the collaborative team or invoke the alternative dispute resolution options provided in this Parenting Plan, our Collaborative Marital Settlement Agreement, or both. Disagreements About the Need or Benefit of Mental Health Treatment for Our Child When we disagree on the necessity or benefit to the child of existing, additional, or new Mental Health Treatment, or of the treatment, services, or technique not included in the above definition of Mental Health Treatment, we agree to a Comprehensive Assessment (as defined in Fla. Admin. Code R. 63D-8.001. See Fla. Admin. Code R. 63N-1.002(14); section 985.03(11), Florida Statutes); or a Comprehensive Mental Health Evaluation or updated Comprehensive Mental Health Evaluation conducted by a Licensed Mental Health Professional or a non-licensed Mental Health Clinical Staff Person working under the direct supervision of a Licensed Mental Health Professional. See Fla. Admin. Code R. 63N-1.002(15)). We shall split the cost of the Comprehensive Assessment or Mental Health Evaluation according to our share of combined net income under sections 61.13(1)(b), 61.30((3), and 61.30(4),Florida Statutes. Related Blog Posts Parental Responsibility & Decision Making Shared Parenting – Retained Consent to Mental Health Treatment Florida Law: Each Parent Retains Consent to Mental Health Treatment Collaborative Practice: Shared Parental Responsibility for Health Care Collaborative Process: Clarifying Intent About “Mental Health Treatment” What Is “Mental Health Treatment?” Informed Consent By One Parent – Florida Mental Health Professionals Florida Mental Health Providers & Informed Consent What If Parents Disagree About Child’s Mental Health Treatment?

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Informed Consent By One Parent – Florida Mental Health Professionals

Collaborative Divorce, Mental Health Treatment, Parenting Issues / Michael P Sampson

When Florida parents divorce and share parental responsibility, either may consent to mental health treatment for a child. Therefore, mental health treatment providers generally may accept informed consent by only one parent to mental health treatment. Informed Consent by One Parent: Each Parent Has a Fundamental Right to Direct Their Child’s Mental Health Parents’ Bill of Rights 2021 Effective July 1, 2021, Florida adopted the Parents’ Bill of Rights, Chapter 1014, Florida Statutes. See Laws of Florida, Chapter 2021-199. The Parents’ Bill of Rights states “a” parent has the fundamental right to direct his or her child’s mental health. The state, its political subdivisions, any other governmental entity or institution can’t infringe on this fundamental right. Section 1014.04(1)(e), Florida Statutes lists among parental rights reserved to “the parent” of a minor child: The right to make health care decisions for his or her minor child, unless otherwise prohibited by law. Who is a “Parent” Who May Give Informed Consent? The Parents’ Bill of Rights defines “parent” in the singular to mean: For purposes of this chapter, the term “parent” means a person who has legal custody of a minor child as a natural or adoptive parent or a legal guardian. Section 1014.02, Florida Statutes. Parents Are the Natural Guardians of Their Child Parents with intact parental rights are each the natural guardians of their own children and of their adopted minor children. See Section 744.301(1), Florida Statutes. If the parents’ marriage ends, the natural guardianship belongs to the parent to whom sole parental responsibility has been granted. If the parents have been granted shared parental responsibility, both continue as natural guardians. When parents share parental responsibility, however, each continues as a natural guardian. A March 2022 case illustrates the scope of each parent’s rights to a child’s counseling records. The Fourth DCA discussed each parent’s rights to request records and interplay with the child’s psychotherapist-patient privilege, which each parent may assert. Section 90.503, Florida Statutes. See Bentrim v. Bentrim, 335 So. 3d 706 (Fla. 4th DCA 2022). Read more about access to records and a child’s psychotherapist-patient privilege here. One Parent’s Informed Consent: What Does “A” Parent’s Consent Mean? The 4th DCA considered Florida’s adoption statute and plain language about “a” parent’s consent to an adoption entity’s intervention. See Kistner v. DCF (In the Interest of MR), 327 So. 3d 848 (Fla. 4th DCA 2021). Similarly, multiple informed consent provisions for Florida mental health providers refer to consent by “a” or “the” parent or guardian. Kistner v. DCF – September 15, 2021 In Kistner, an adoption entity moved to intervene in a termination of parental rights proceeding, and attached dad’s consent to intervention. Regarding intervention, section 63.082(6)(a) requires a trial judge to allow intervention if “a” [singular] parent signs a consent for adoption with the adoption entity. Yet the trial judge found reading the statute’s language that way ignored other provisions of the adoption statute requiring both parents’ consent to adoption. Mom was known, participating in the TPR proceedings, and had her parental rights intact. Thus, the trial judge concluded the nonparty couldn’t intervene without her consent, too. Florida’s 4th DCA reversed. The court agreed with the adoption entity. The trial judge erred when it determined “a parent” and “the parent” required an adoption entity to get both parents’ consent. First, sections 63.082(6)(a) and (6)(b), Florida Statutes plainly don’t define “parent” to include both parents. Second, the articles before “parent” don’t suggest both parents’ consent to intervention in a TPR proceeding is required. Indefinite Articles ‘A’ and ‘The’ – To the Dictionary! For the plain meaning of ‘a’ parent and ‘the’ parent, the Kistner court dusted off the dictionary: The indefinite article “a’” and definite article “the” are undefined in the statute. But “a”‘ is defined in dictionaries as ‘[u]sed before nouns and noun phrases that denote a single but unspecified person or thing: a region; a person.’ A, The American Heritage Dictionary of the English Language 1 (5th ed. 2016); see also A, Merriam-Webster’s Collegiate Dictionary 1 (11th ed. 2003) (‘used as a function word before singular nouns when the referent is unspecified’). The American Heritage Dictionary of the English Language defines “the” as ‘used before singular or plural nouns that denote particular, specified persons or things: the baby; the dress I wore.’ The, The American Heritage Dictionary of the English Language 1803 (5th ed. 2011); see also The Merriam-Webster’s Collegiate Dictionary 1294 (11th ed. 2003) (‘used as a function word to indicate that a following noun or noun equivalent is definite or has been previously specified by context or by circumstance’). Interest of MR, 327 So. 3d 848 (Fla. 4th DCA 2021) (emphasis added). More Definitions: What Does “Medical Care and Treatment” Include? Florida law authorizes a natural or adoptive parent, legal custodian, or guardian to consent to “medical care and treatment.” “Medical care and treatment” includes, ordinary and necessary medical and dental examination and treatment, including blood testing, preventive care including ordinary immunizations, tuberculin testing, and well-child care, but does not include surgery, general anesthesia, provision of psychotropic medications, or other extraordinary procedures for which a separate court order, health care surrogate designation under s. 765.2035 executed after September 30, 2015, power of attorney executed after July 1, 2001, or informed consent as provided by law is required, except as provided in s. 39.407(3). Section 743.0645, Florida Statutes. The definition of “medical care and treatment” doesn’t expressly include “mental health treatment.” Baker Act: Children Over 13 May Consent to Some Mental Health Treatment Without Parental Consent With no parental consent, under The Florida Mental Health Act (also known as The Baker Act), a child 13 years or older can receive mental health diagnostic and evaluative services, individual psychotherapy, group therapy, counseling or other verbal therapy from a licensed mental health professional. See Bittinger, Ann, Legal Hurdles to Leap to Get Medical Treatment for Children, THE FLORIDA BAR JOURNAL (January 2006), n. 30. See also section 394.4784, Florida Statutes. Mental Health Services Overseen by Florida DCF: the Minor Child’s Guardian (At Least) One Parent Must Give Informed Consent A

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Florida Mental Health Providers & Informed Consent

Collaborative Divorce, Mental Health Treatment, Parenting Issues / Michael P Sampson

This post summarizes Florida mental health informed consent rules for mental health providers. Florida parents who divorce typically share parental responsibility. When they do, either may consent to mental health treatment for a child. Each parent remains their child’s natural guardian. See Section 744.301(1), Florida Statutes. As summarized in the table below, mental health treatment providers generally may accept informed consent by only one parent to “mental health treatment.” A mental health provider’s ability legally to accept informed consent from only one parent may differ from what may be in the child’s best interests. Moreover, a mental health provider’s accepting one parent’s consent — even when the provider can — doesn’t always protect the provider. When parents disagree about initiating, continuing, or ending their child’s mental health treatment, they may cause the provider heartache. For example, the provider may have to hire a lawyer and lose substantial time away from practicing to defend attacks in custody disputes. And, the parent who didn’t consent may complain to the mental health provider’s regulating board. Even more troubling, a child caught in the middle who needs mental health treatment may not get it timely or effectively. In Collaborative Divorce, however, parents have alternatives. They may anticipate and reach agreements about their child’s mental health treatment. Florida’s mental health treatment providers, and their professions’ informed consent requirements, include: Related Blog Posts Shared Parental Responsibility and Sole Parental Responsibility Shared Parenting – Retained Consent to Mental Health Treatment Florida Law: Each Parent Retains Consent to Mental Health Treatment Collaborative Practice: Shared Parental Responsibility for Health Care Collaborative Process: Clarifying Intent About “Mental Health Treatment” What Is “Mental Health Treatment?” Language – “Mental Health Treatment” Informed Consent By One Parent – Florida Mental Health Professionals What If Parents Disagree About Child’s Mental Health Treatment?

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What If Parents Disagree About Child’s Mental Health Treatment?

Collaborative Divorce, Mental Health Treatment, Parenting Issues / Michael P Sampson

One parent disagrees with the other parent’s consenting to mental health treatment for their child. They share parental responsibility, so each parent retains consent to. mental health treatment. To move forward, the parents may often face costly, time consuming, and inadequate remedies. The parent who doesn’t consent may ask the court to modify the parenting plan. But, to succeed, the parent must allege and prove: a substantial change in circumstances, the other parents’ decision is detrimental to the child, and continued shared parental responsibility would be detrimental to the child. The petitioning parent would request ultimate authority or sole responsibility for mental health decisions for the child. See https://www.flsenate.gov/Session/Bill/2016/615/Analyses/h0615.CJS.PDF. When Parents Disagree About Mental Health Treatment: Puhl v Puhl – Failed Modification In Puhl v. Puhl, 260 So. 3d 323 (Fla. 4th DCA 2018), dad unsuccessfully sought modification. Mom took the child to therapy without first consulting him. The court found insufficient grounds for modifying the parenting plan. The facts supported no finding that a “substantial, material, and unanticipated change in circumstances” occurred. Ultimate or Sole Parental Responsibility Section 61.13, Florida Statutes does not authorize either parent to consent to mental health treatment where the court has awarded one parent ultimate authority regarding health care decisions or where the court has awarded sole parental responsibility to one parent. For that to happen, the court must find shared parenting detrimental to the child. Detriment Justifying Sole Decision-Making Authority When Parents Disagree About Mental Health Treatment A parent who disagrees with the other parent’s consent to mental health treatment for a child may seek sole decision-making authority over the child’s health care. But showing detriment to justify sole decision-making authority isn’t easy. Detriment includes an extensive inability to cooperate on issues involving the welfare of the children. Examples: Musgrave v. Musgrave, 290 So. 3d 536 (Fla. 2d DCA 2019) – reversing award to mom of sole parental responsibility where there was no logical or reasonable justification to support concluding shared responsibility was detrimental to the kids; Walker v. Walker, 274 So. 3d 1156 (Fla. 2d DCA 2019) – upholding trial judge’s order denying each parent’s request for sole decision-making authority; Cranney v. Cranney, 206 So. 3d 162 (Fla. 2d DCA 2016) – reversing award of ultimate decision making authority to mom; Fazzaro v. Fazzaro, 110 So. 3d 49 (Fla. 2d DCA 2013) – no evidence of “a continuing pattern of hostility that reasonably would lead one to conclude that the parties will be unable to effectively work together for their child’s best interests”; Gerencser v. Mills, 4 So. 3d 22 (Fla. 5th DCA 2009) – the history of the parents’ inability to cooperate was not yet so extensive to give dad sole decision making authority. Related Blog Posts Shared Parental Responsibility and Sole Parental Responsibility Shared Parenting – Retained Consent to Mental Health Treatment Florida Law: Each Parent Retains Consent to Mental Health Treatment Collaborative Practice: Shared Parental Responsibility for Health Care Collaborative Process: Clarifying Intent About “Mental Health Treatment” What Is “Mental Health Treatment?” Language – “Mental Health Treatment” Informed Consent By One Parent – Florida Mental Health Professionals Florida Mental Health Providers & Informed Consent

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